Not in our backyard

The government has anti-social behaviour in its sights.

Victoria MacCallum asks whether new legislation will put a stop to the mischief, or make matters worse

Anti-social behaviour is the political flavour of the month.

The papers are full of 'lawless Britain' - earlier this month three teenage tearaway brothers from Dartford became some of the first recipients of lifetime anti-social behaviour orders (ASBOs) after being arrested more than 40 times in the past five years.

The government has realised the vote-winning potential in cracking down on anti-social behaviour, and last month's Queen's speech announced plans to publish an anti-social behaviour white paper at the turn of the year with legislation later, drawing together different initiatives sprinkled around separate Whitehall departments.

Tony Blair told a press conference that tackling anti-social behaviour was about making sure Britain was a 'decent functioning society', which had to be 'based on mutual respect and with a sense of right and wrong'.

This forthcoming legislation will strengthen and tighten up the current system, which revolves around ASBOs.

ASBOs were introduced by the government in April 1999 as a flagship of the then home secretary Jack Straw's law and order programme.

Local authorities and chief police officers, acting in consultation, may apply to a magistrates' court for what is - in effect - a banning order, protecting the community from an individual alleged to cause harassment, alarm or distress to others.

Despite the fanfare with which the initiative was introduced, take-up has been limited, with government figures showing that only 654 applications have been made since their introduction.

So why the apparent lack of enthusiasm? 'The problem is bureaucracy,' says Helen Tucker, the housing litigation partner at Anthony Collins in Birmingham, which represents around 80 registered social landlords (RSLs) and 40 local authorities.

'Getting an ASBO involves consultation between police, local authorities and RSLs.

Protocols have to be developed, which can take up to 18 months, and then there are discussions over which authority will fund the ASBO, and whose lawyers will present it.'

Despite the administrative mire, ASBOs have their supporters.

Celia Tierney is a senior housing solicitor at Manchester City Council, and deals directly with the implementation of ASBOs.

'We have 41 ASBOs in place at the moment (not including 11 others which fall under the jurisdiction of Greater Manchester police), and they are a very positive idea,' she says.

While agreeing that the main problem is that 'they take so long to obtain', she says that if enforced strongly enough, they can work as an excellent preventative measure.

'A recent example was someone who used to bully vagrants in the city centre to beg for money and hand it over to him - he was preying on the most vulnerable members of society, and also exacerbating the existing problem of begging,' she said.

'We obtained an ASBO against him; before very long he broke it, but was arrested immediately and given a custodial sentence.'

Ms Tierney maintains that ASBOs are only as effective as their enforcement by the police; however, it is precisely this aspect which causes consternation in some quarters.

ASBOs involve civil proceedings, with a case needing to be proved to the standard of the balance of probabilities.

A breach of the order, on the other hand, can lead to imprisonment, and many solicitors argue that the system should be changed.

'People face civil proceedings before a magistrates' court, yet they're at risk of having a criminal sanction applied to them based on a civil standard of proof,' says David Foster, head of the housing department at south London firm Fisher Meredith.

'If you run the risk of going to jail, then you should be convicted beyond reasonable doubt rather than on a balance of probabilities.'

This anomaly is one of the most problematic issues surrounding the orders.

'ASBOs are the strangest things to ever come out of the Home Office,' says Ben Taylor, housing partner at Glaisyers in Manchester.

'They are designed specifically to deal with minors, because under-18s cannot be the subject of an injunction, and the punishment previously doled out by civil courts - a fine - was not seen as appropriately harsh.'

Since 2 December this year, RSLs have been able to apply to the courts directly for ASBOs, a move which Mr Taylor argues means that landlords and local authorities have in effect taken over the role of the police.

'If someone is causing anti-social behaviour which is likely to cause a criminal offence, that is the police's job.

Why should landlords, untrained in these problems, have the power to start policing their estates?'

He worries that this extension of ASBOs will lead to landlords using them as a 'quick fix' solution for deeper problems.

'There is a real fear that local authorities and landlords will deal with anti-social behaviour by the use of ASBOs, rather than tackling the real causes such as unemployment and dysfunction,' he says.

'Young people who commit anti-social behaviour should not be punished by the local authorities - the authorities should help them and provide assistance, education and facilities to keep them off the street.'

People with mental health problems also suffer under the ASBO regime, says Mr Foster.

'Mentally ill people behave erratically, but many local authorities use ASBOs to eject them rather than complying with their duties under the community care order,' he says.

'ASBOs focus on people's behaviour towards the community rather than the local authority's responsibility towards the vulnerable.'

Mr Taylor maintains that ASBOs do not solve the problem they were invented to solve, but make the situation worse.

'They are an extremely blunt tool used to tackle a problem which should be combated in other ways,' he says.

'Anti-social behaviour is not a new problem - people have been at each other's throats since the Tower of Babel - but criminalising and pillorying young people will not help matters.'

However, Ms Tucker is more positive about the long-term effects of ASBOs.

'They are so effective specifically because they tackle minors,' she says.

'If a family is being anti-social, and it is the teenagers causing the trouble, all you could do previously was to evict the whole family.'

This was ineffective, she says, because the family could stay in the area in private accommodation or with relatives.

'You hadn't got rid of the problem; you'd just made a family homeless,' she says.

'Now, however, you can obtain an ASBO against the children and hence reduce the number of evictions.'

The extension of power to RSLs is welcomed by Ms Tucker, whose firm has long lobbied for the change on behalf of its RSL clients.

Future changes to the process include, from April, county courts having the ability to hand out ASBOs, and criminal courts being able to dole them out at the same time as criminal sentences.

Commenting on the proposed Anti-Social Behaviour Bill, a Law Society spokesman said: 'Anti-social behaviour is a very real and serious problem facing many communities which needs to be tackled.

But giving social landlords increased powers to evict risks simply moving the problem to a new community and exacerbating homelessness and child poverty.

'Accordingly, we believe that the aim of intervention should be to change the offending tenants' behaviour, with eviction being used only as a last resort.'

Home Office guidance issued on 12 November has also clarified and streamlined the process.

For example, it has been notoriously difficult to persuade witnesses to testify against their anti-social neighbours.

The guidance encourages the use of hearsay evidence, through the use of professionals - such as housing officers - giving evidence on behalf of neighbours to avoid the risk of witnesses being intimidated.

'Until recently, ASBOs have been frustratingly difficult for RSLs to obtain and enforce, but that should all improve,' Ms Tucker says.

'The government has put anti-social behaviour at the top of the political agenda, and people expect results.'

Already, a split in the profession seems to be emerging, with many local authority lawyers in favour of ASBOs and human rights lawyers having misgivings.

But with the government seeing ASBOs as a vote-winner, and the orders becoming ever easier to obtain, the debate may become more heated before it cools down.